6.3. Presumption of Soundness

"[E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment." 38 U.S.C. § 1111; see also 38 C.F.R. § 3.304(b). Therefore, when no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound in every respect. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227.

Upon entering service, an individual will be presumed sound, "except as to defects, infirmities, or disorders noted at [entry], or where clear and unmistakable evidence demonstrates that the injury or disease existed before [service] and was not aggravated by such service." 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304(b). "Clear and unmistakable evidence," as used in the governing statutes, has been interpreted to mean evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258-59 (1999) (citing definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).

The Court has held that the Board should seek medical opinions as necessary to determine the sufficiency of the evidence offered to rebut the presumption of soundness. Adams v. West, 13 Vet. App. 453 (2000), aff'd sub nom. Adams v. Principi, 256 F.3d 1318 (Fed. Cir. 2001). The regulations implementing 38 U.S.C. § 1111 state that medical evidence is necessary to rebut the presumption of soundness and that the Board should not make such a determination without seeking medical opinions. See 38 C.F.R. § 3.304(b); see also Adams, 256 F.3d at 1318. Although the Secretary may not seek an opinion for the sole purpose of discrediting an appellant's claim, the Board is free to obtain a medical opinion to clarify an issue of medical complexity. See Adams, 256 F.3d at 1318; see Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009).

In Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the Federal Circuit discussed the interplay between the statutory presumptions of soundness and aggravation and its effect on VA's burden of rebuttal. The Federal Circuit neatly summarized the burden-shifting framework as follows:

The effect of section 1111 on claims for service-connected disability thus may be summarized as follows. When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress" of the preexisting condition.

370 F.3d at 1096 (quoting 38 U.S.C. section 1153). In deciding whether a condition preexisted service, the Board must consider the veteran's medical history, accepted medical principles, evidence of the "basic character, origin and development" of the condition, and "lay and medical evidence concerning the inception, development and manifestations" of the particular condition. 38 C.F.R. §§ 3.304(b)(1), (2).

The Court reviews de novo a Board decision concerning the adequacy of the evidence offered to rebut the presumption of soundness. See Cotant v. Principi, 17 Vet. App. 116, 130 (2003). However, the Federal Circuit has stated that, in reviewing the legal sufficiency of such rebuttal evidence, this Court may employ the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard of review because it subsumes de novo review of questions of law. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009).

The only prerequisite for the application of the presumption of soundness is that the veteran's entry examination be clear of any noted diseases or disabilities. See Wagner, 370 F.3d at 1096. The Court has recognized that service connection may be granted for congenital diseases. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). The presumption of soundness applies if a veteran's congenital condition is not noted at entry. See id.

The presumption of soundness does not, however, apply to congenital defects, because such defects "are not diseases or injuries" within the meaning of 38 U.S.C. §§ 1110 and 1111. 38 C.F.R. § 3.303(c); see Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that the presumption of soundness does not apply to congenital defects); see Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). "VA regulations state that congenital or developmental defects 'are not diseases or injuries within the meaning of applicable legislation.'" Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (quoting 38 C.F.R. § 3.303(c)). On the other hand, "congenital diseases . . . may be service connected." Id.

"[A] defect differs from a disease in that the former is 'more or less stationary in nature' while the latter is 'capable of improving or deteriorating.'" Id. (quoting VA Gen. Couns. Prec. 82-90 at 2). Thus, congenital defects and conditions resulting from them are not compensable, whereas congenital diseases and conditions resulting from them are compensable. For this reason, "[t]he presumption of soundness does not . . . apply to congenital defects, because such defects 'are not diseases or injuries' within the meaning of 38 U.S.C. §§ 1110 and 1111," the statutes governing basic entitlement to VA benefits and the presumption of soundness. Id. at 397.

Importantly, it is well established that merely noting a history of pre-service medical problems does not suffice to "note" a medical condition that is present at induction. See Crowe v. Brown, 7 Vet. App. 238, 245 (1995) (childhood history of asthma did not "note" the condition at induction); 38 C.F.R. § 3.304(b)(1) ("History of preservice existence of conditions recorded at the time of examinations does not constitute a notation of such conditions").